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Legislative language must ensure balance between curbing rights and protecting them: Pavan Duggal

Interview with Supreme Court advocate specialising in cyber law

Ritika Bhatia 

With the Supreme Court striking down Section 66A, included in the Information Technology Act of 2000 by an amendment in 2008, calling it violative of the fundamental right to freedom of expression in its entirety, the debate about what can be allowed online and what cannot is in focus yet again. Pavan Duggal, a Supreme Court advocate specialising in cyber law, in a conversation with Ritika Bhatia, discusses whether there needs to be an appropriate balance between curbing rights and safeguarding them

The original intent of Section 66A was to check cyber crimes against women and cyber bullying. When and why do you think that intent changed to accommodate a whole gamut of online activity?

The entire Section 66A was drafted and passed in a hurry without any serious debate. The intention of the section was to regulate online misuse and the rampant prevalence of cyber bullying. The problem arose when extremely ambiguous terms were inserted in the law, creating fertile ground for the misuse of the law. The provision was laced with vague language that could potentially be used in instances of the sort that were not envisaged at the time of the drafting of the said provision. However, practically speaking, Section 66A became a loose cannon that could be fired in a direction of one's choice in any circumstance and to target any person.

Why do you think the issue of possible misuse evaded the notice of the panel during the drafting?

The absence of appropriate consultation with subject experts at the time of drafting of the law ensured that the holistic approach to understanding the various nuances of the section was missing. Given the intrinsic language used by the section, the potential for its abuse existed from day one. Subsequent cases of misuse only confirmed the infirmity in the law.

What are your thoughts on the cases of rampant misuse by the authorities, such as the ones cited in the verdict?

I was crystal clear from the beginning that Section 66A was going to be the mother of all troubles. I had written and spoken about the need for revisiting the law. This is a clear case of defective legislative drafting and no amount of cosmetic treatment of the section could save itself from the inherent vices that it suffered from.

Do you agree with the apex court's verdict?

The Supreme Court has rightly examined the provision from the perspective of Article 19 of the Constitution of India. Reasonable restrictions under Article 19(2) do not provide for the restrictions that were imposed on free speech by Article 66A. As such, the approach of the Supreme Court has been in sync with constitutionally established principles. However, there was a distinct window for handling the provision of Section 66A(c) dealing with spam and related abuse in a different light, given that India is one of the top spam-producing nations of the world. The Supreme Court chose not to deal with this.

The government pleaded that it would not misuse the law and administer it in a reasonable manner. Do you think any government can be trusted on its word alone when a law exists that is open to misuse?

There is an age old saying that if any provision of law allows potential for abuse and misuse, the same will indeed be abused and misused. The canons of jurisprudence are crystal clear that a law must be examined on its own merits and in the context of the specific language used therein. No amount of governmental assurances that it will not misuse the law should be relied upon by any court, which should examine the constitutional validity of any provision.

Did it strike you as odd that the Bill passed through Parliament without any debate? And the same parliamentarians are now terming it as poorly-drafted?

History has a strange element - it always repeats itself. The IT Act, 2000 was passed without discussion in both the houses of Parliament in 2000. The IT (Amendment) Bill, 2008 too was passed without discussion in both the Houses. Technology legislations are never the favourite of non-tech lawmakers and hence, these kinds of technical legislations often do not get the requisite share of attention from parliamentarians. The legislature has the bounden duty to examine each prospective legislation on its own merits and then pass the same. The legislature needs to understand the aspirations of the and technology users as well as the netizens. Calling provisions poorly drafted at a later stage does not absolve the lawmakers of their primary duty of examining the proposed legislation in its entirety before its passage.

How can policymakers walk the fine line between curbing rights and safeguarding them?

There is no magical formula in this regard. The target problem needs to be identified and then addressed by legislative language in such a way that there is appropriate balance between curbing rights and safeguarding them. The recent judgment is a wake-up call for the government to not make any laws that go against the basic structure of the principles enshrined in the Constitution. The focus is now back on the government to amend the Indian cyber laws to make them more topical with the needs of the time, given the advancements in technology.

First Published: Sat, March 28 2015. 20:34 IST